o p I isr T o isr 



HON. JOHN M. READ, 



fT THK SUPREME COURT OF PENNSYLVANIA. 



IN rWdl! Of 



Ck Cfliistitulionaltti) of !l;c %tt 0f Congress 



OK .VJAlJCll M. lX(i:}. 



"ll)K KNU(>J.JjlN(i AM) CALLliXr; On THE XATIONAL 
KOHCKS AND FOH OTHEK PURPOSES." 



OPINION 

OP 

HON. JOHN M. READ, 

OF THE SUPREME COURT OF PENNSYLVANIA, 

IN PATOK OF 

THE eONSTITUTIONALlTV OF THE ACT OF COMRESS 



OF MAECH 3, 1863, 



■FOR ENROLLING AND CALLING OUT THE NATIONAL 
FORCES AND FOR OTHER PURPOSES." 



DELIVEEED AT PITTSBUEG, 



On Monday, November 9, 1863. 




PHILADELPHIA: 
CAXTON PRESS OF C. SHERMAN, SON & CO. 

1 8 6 .S. 






/ Three bills in equity were filed in the Supreme Court for the Eastern Dis- 
trict by three individuals against the officers of the Enrolling Board of the 
Third Congressional District, praying for injunctions to restrain the defendants 
from further proceeding with or under such enrolment, requisition, and draft, 
under the Act of 3d March, 1863, and particularly from all proceedings against 
the said plaintiffs. The ground alleged for these applications was the uncon- 
stitutionality of this Act of Congress.- A motion for a special injunction was 
made in each case at Nisi Prius, before Mr. Justice Woodward, who requested 
his brethren to sit with him at the hearing. The cases were argued before a 
full bench, at Philadelphia, on Wednesday, the 23d of September last, by 
Messrs. George M, Wharton and Charles Ingersoll for the plaintiffs, no counsel 
appearing on behalf of the defendants. There being a disagreement in the 
Court, each Judge delivered a separate opinion at Pittsburg, on Monday, the 
9th of November. Chief Justice Lowrie and Justices Woodward and Thomp- 
son were in favor of granting the injunctions, upon the ground that the act 
was unconstitutional, whilst Justices Strong and Read were against granting 
the injunctions, and were of opinion that the Act of Congress was constitu- 
tional. 

The injunctions granted were only ])reliminary, and were limited to the cases 
of the three plaintiffs in these bills. 

The following is the opinion of Judge Read. 



4o^C^i 



1 '. 




OPINION. 



The power of the Government of the United States ex- 
tends over all the States and Territories of the Union. It 
has no rival in the State governments, whose power is strictly 
confined to their own territorial limits. It is the only repre- 
sentative of the people recognized by foreign nations, in their 
various relations with us, in time of war and peace. All the 
powers therefore vested in the National Government, are 
necessarily supreme and paramount, and cannot be rightfully 
disobeyed by her citizens. This General Government has the 
sofe and exclusive power of declaring war and making peace, 
of raising and supporting armies, of providing and maintain- 
ing a. navy, of laying and collecting taxes, duties, imposts, and 
excises, to pay the debts, and provide for the common defence 
and general welfare of the United States, and of borrowing 
money on the credit of the United States. The avowed object 
of these and other powers, vested in the General Government, 
was to form a more perfect Union, establish justice, insure 
domestic tranquillity, provide for the common defence, pro- 
mote the general welfare, and secure the blessings of liberty to 
the people of the United States and their posterity. It was 
therefore solemnly declared, and made a fundamental article 
of the National Constitution, that the Constitution, and the 
laws of the United States which shall be made in pursuance 
thereof, and all treaties made, or which shall be made, under 
the authority of the United States, shall be the supreme law 
of the land ; and the Judges in every State shall be bound 
thereby, anything in the Constitution or laws of any State to 
the contrary notwithstanding. 



1 Federalist, 
No. 23. 



Id. p. 151. 



Id. p. 150. 



Vattel, Book 3, 

ch. 2, s. 10, ed. 

1760. 

2 Burlamaqui, 

Politic. Law, 

part 4, ch. 1, .s. 

14, p. 158. 



Vattel, id. s. 8. 

Bowyer's Const, 
Law of Eng- 
land, p. 484. 



The power to raise armies for the United States being 
vested solely in Congress, the legislative branch of the Gov- 
ernment, it must "exist without limitation; because it is 
impossible to foresee or to define the extent and variety of 
national exigencies, and the correspondent extent and variety 
of the means which may be necessary to satisfy them. The 
circumstances that endanger the safety of nations are in- 
finite ; and for this reason no constitutional shackles can 
wisely be imposed on the power to which the care of it is 
committed. This power ought to be coextensive with all 
the possible combinations of such circumstances ; and ought 
to be under the direction of the same councils which are ap- 
pointed to preside over the common defence." 

" The result from all this is, that the Union ought to be 
invested with full power to levy troops, to build and equip 
fleets, and to raise the revenues which will be required for 
the formation and support of an army and navy in the cus- 
tomary and ordinary modes practised in other governments," 
and " there can be no limitation of that authority which is to 
provide for the defence and protection of the community in 
any manner essential to its efiicacy, that is, in any manner 
essential tothe formation, direction, or support o/^/^e National 
Forces." The necessity of employing a regular force in case of 
seditions and insurrections is forcibly portrayed in the 28th 
number of The Federalist. 

No person is naturally exempted from taking up arms in 
defence of the state, — the obligation of every member of 
society being the same. Those alone are excepted who are 
incapable of handling arms or supporting the fatigues of war. 
This is the reason why old men, children and women are ex- 
empted. " The clergy cannot naturally and as a matter of 
right arrogate to themselves any peculiar exemption. To 
defend one's country is an action not unworthy of the most 
sacred hands." 

Every citizen is bound to serve and defend the State as far 
as he is capable ; and it would seem that the duty incumbent 
on every citizen to defend his country, as well from foreign 
aggression or injury as from intestine disorders, was fully 
recognized by the common law. 



In the first Constitution of Pennsylvania, and in those of 
several other States, the duty of the citizen to yield his per- 
sonal service when necessary, or an equivalent thereto, is dis- 
tinctly asserted. This is the more remarkable in our State, 
as, owing to the preponderating influence of the Society of 
Friends, the colony had no efficient militia law, at any time, 
and in the earlier and later periods of its history, none at all. 
In 1756, the Assembly prepared a new militia bill, by which Gordon's Hist, 
all the male inhabitants were subjected to military duty, °^ Pennsyiva- 

•^ J J ^ nia, p. 340. 

commutable for a fine in the ordinary courts of justice. The 
officers, however, were still elective, for which reason the 
Governor objected to the bill. He also required, that persons 
alleging conscientious scruples against bearing arms, should 
appear in open court, and declare to what society they be- 
longed ; that they were truly and religiously opposed to war ; 
and that a court-martial should be authorized to punish by 
death or otherwise, as was provided by the English militia 
bill. But the house, unwilling to strengthen the hands of the 
executive, by giving him the appointment of the officers, and 
to lodge such powers in courts-martial, refused to remodel 
their bill. 

The battle of Lexins-ton having roused the indio^nation of 
the people, the Committee of Correspondence of the city and 
county of Philadelphia, to supply the want of a militia law, 
called a meeting of the citizens, who resolved to form a mili- 
tary association, for the protection of their property, their 
liberty, and their lives. This association extended through 
every county of the province, its members furnishing them- 
selves with the necessary arms. The Assembly approved 
the association, and engaged to provide for the pay and 
sustenance of those called into actual service. The Commit- 
tee of Public Safety prepared articles for the government of 
this military association, but the citizens refused to sign them, 
alleging that many persons, rich and able to perform military 
duty, claimed exemption under pretence of conscientious 
scruples. Both parties addressed the Assembly, the Com- 
mittee of Correspondence, and of the officers and soldiers of 
the military association, saying emphatically, "Be this as it 
may, self-preservation is the first duty of nature, which every 



man indispensably owes, not only to himself, but to the Su- 
preme Director and Governor of the universe who gave him 
being. In political society all men by the original compact 
are required to unite in the defence of the community against 
such as would unlawfully deprive them of their rights, and 
those who withdraw themselves from this compact are not 
entitled to the protection of the society. The safety of the 
people is the supreme law. He who receives an equal bene- 
fit should bear an equal burden." 
r. April, J776. The Assembly imposed a fine on all able-bodied eifective 
male white persons capable of bearing arms, not associators, 
between the ages of sixteen and fifty years ; ministers of the 
Gospel of all denominations, schoolmasters in actual employ, 
and servants purchased bona fide, and for a valuable consid- 
u February, eratiou Only cxccpted, whicli fine was largely increased by 
3777, McKean's j.|^g g^.^^ Asscmblv Under the State Constitution. 

cd. p. 22. «' 

The revolutionary Congress was a body entirely dependent 

on the will of the several States, and the good feeling of their 

citizens ; for the Articles of Confederation were not finally rati- 

4 Marshairs figj |)y ^n the States until the 1st March, 1781. The Congress 

Life of Wash- .,, „ iioi ii 

ington, p. 241. assigucd the quota oi troops to the several fetates, and they 
followed the example by apportioning to the several counties 
the quota to be furnished by each. This division of the State 
was again to be subdivided into classes, and each class was 
to furnish a man by contribution or taxes imposed. In some 

2 Ramsay's Life instances a draft was to be used in the last resort. Pennsyl- 

'^olr^'"^*""' vania concentrated the requisite power in the President, Mr. 

Reed, and authorized him to draw forth the resources of the 

State, under certain limitations, and if necessary to declare 

martial law over the State. 

The Articles of Confederation did not really increase the 
powers of Congress, for the land forces were to be raised by 
the several States upon requisitions for their several quotas, 
and the Legislature of each State was to appoint the regimental 
officers, raise the men, and clothe and arm and equip them 
in a soldierlike manner, at the expense of the United States, 
and march them to the place appointed. All the action 
therefore of the Confederacy was upon the States, and not 
upon the people, and its entire inadequacy to fulfil the pur- 



poses of a general government Avas felt and acknowledged 
by all reflecting men. It Avas simply a confederacy, while 
the Constitution of 1787 is a truly national government, 
acting not upon the State governments, but directly upon 
the people of the United States, as a nation, by whose free 
w^ill it was established. 

The power therefore to raise and support armies was from 
sheer necessity given to Congress, for it was a right which 
could not from the nature of things be reserved to the people, 
nor to the States, who could not step beyond their own nar- 
row limits. It is clear, then, that whatever means might be 
required to raise an army, could be used by the Congress, 
and they were the sole judges of its expediency and propriety. 
Now there is not a word in the Constitution limiting the 
natural power of the Government over its citizens, to oblige 
them to render personal service as soldiers, nor is there a 
single phrase implying that they can only be compelled to 
serve, when they choose to do so by voluntary enlistment. 

The plan of General Knox, Secretary of War, submitted is Jan'y, 1790. 
to Congress by General Washington, contemplated as liable 
to service all persons between the ages of eighteen and sixty, 
and stated certain general principles on which it was formed ; 
the fourth is in these words : " That every man of the proper 7 Niies' Keg. p. 
age and ability of body, is firmly bound, by the social com-"^*"" 
pact, to perform personally his proportion of military duty 
for the defence of the state." 

Rhode Island was the last State which ratified the Consti- 
tution. On the 29th May, 1790, their convention made a 
declaration of rights, the 18th paragraph of which was : " That 1 Einofs r>eb. 
any person religiously scrupulous of bearing arms ought to^' ' " 
be exempted upon payment of an equivalent, to employ an- 
other to bear arms in his stead." They at the same time pro- 
posed certain amendments to the Constitution, the sixth of 
which was : "That no person shall be compelled to do mili- la. p. 372. 
tary duty, otherwise than by voluntary enlistment, except in 
cases of general invasion, anything in the second paragraph 
of the sixth article of the Constitution, or any law made 
under the Constitution, to the contrary notwithstanding." 

The works of Burlamaqui, Montesquieu, Puifendorf, Gro- votes uiAssem- 



8 

biy, 1776 to tius, Locke, Vattel, and all the writers on government and 

'''' ' "' the laws of nations, were familiar to the statesmen of the 

Revolution, and were largely used in their discussions, which 

from necessity involved the fundamental principles of civil 

society. No one, for instance, can read the second chapter of 

vattei, Book 3, the third book of Vattel's Law of Nations, without seeing 

*"^'J°!"3n"'-^' that the clause to raise and support armies, and the conse- 

&c., ed. 17bO, in rr ' 

I'hiiaa. Library, quent powor to obligo every able-bodied man to become a 
soldier, is but an embodied expression of the sound views of 
this enlightened writer. The very volume I quote from bears 
the marks of the studies, most probably, of some of the great 
men who framed the Constitution, and to whom the use of 
the library had been tendered. 

There can therefore be no doubt that the contemporane- 
ous construction of this clause was that adopted by General 
Knox and approved by President Washington, particularly 
when we advert to the amendment of Rhode Island, proposed 
four months afterwards, to confine this compulsory power to 
cases of general invasion. 

In the second war of independence, Mr. Monroe, then Secre- 
7 Niies' Reg. p. tary of War, with the approbation of Mr. Madison, a framer 
137, 17 Oct. 1814. Q^ ^i^g Constitution, and one of the authors of The Federalist, 
proposed a plan to Congress by which the free male population 
of the United States, between eighteen and forty-five years, be 
formed into classes of one hundred men, — each class to furnish 
Id. p. 189. ^*^^ ^0^ ^^^® 'Sf&Y, within thirty days after the classifica- 
tion, and replace them in the event of any casualty. If any 
class failed to provide the men required of it, within the 
time specified, they should be raised by draft on the whole class, 
any person thus drafted being allowed to furnish a substitute. 
This, therefore, was a compulsory draft, and the argument of 
Mr. Monroe in favor of the power of Congress, is clear, full, 
and exhaustive, and never has been answered. (See Note A.) 
It was opposed by the peace men of that day, gentlemen 
who favored the Hartford Convention, and who were entirely 
opposed to the general administration, and the further prose- 
3 Annals of 13 cutiou of tlio War. Mr. Charles J. Ingersoll supported the 
Congress, p. mcasuro in a very able speech, and after a lapse of thirty- 
ingersoii'snist scvcn ycars, his deliberate judgment was in favor of its con- 



stitutionality. The war was drawing near to a close, all of second war. 
parties expected peace, and tlie news of it in February, 1815, '^ ''^™^' ^^'" ^' 
stopped all further warlike preparations. 

In the State of New York, then strongly in favor of the 
administration and the vigorous prosecution of the war, at 
a special session of the Legislature called by Governor Tomp- 
kins, Mr. Van Buren introduced a bill into the Senate to 
raise twelve thousand men by drafting, and placing them in 
the service of the United States, which, after being amended, 
became a law on the 24th of October, 1814, It was stigma- street's New 

T • • 1 -n 1 1 • • 1-1 York Council 

tized as a conscription bill by the opposition, and m the of Revision, p. 
Council of Revision, Chancellor Kent reported objections, *^^- 
the first of which was, "Because the Constitution of the 
United States has granted to Congress the power to raise 
and support armies, and with it the exclusive power to lay 
and collect imposts, and the concurrent power to lay and col- 
lect taxes, duties, and excises, in order to provide for the 
common defence and general welfare." These objections 
were, however, overruled by Governor Tompkins, Chief Jus- 
tice Thompson, and Spencer and Yates, Justices of the Su- 
preme Court, and the bill became a law. The same Legisla- 
ture passed an act to raise a corps of four thousand sea fenci- 
bles, and also an act for raising two regiments of men of color. 

Governor Tompkins was an ardent supporter of the war, 
and a most popular executive, and was rewarded by a grate- 
ful people by being twice elected to the high office of Vice- 
President of the United States. 

A bill of a similar character was introduced into the Sen- senate Joumai, 
ate of Pennsylvania, entitled " An act to raise for a limited Rep.'p. 49''^. 
time a military force," which passed that body by a vote ofp-75; id. p. 135. 
twenty-one to nine, but was lost in the House. Mr. Nicholas 
Biddle, then a member of the Senate from Philadelphia, 21, 1815. 
made a very able speech in favor of the bill, and voted for it. 

On the 3d March, 1863, Congress passed "An act for en- 12 stat. at l. p. 
rolling and calling out the national forces, and for other pur- 
poses," by which all able-bodied male citizens, and persons 
of foreign birth who shall have declared on oath their inten- 
tion to become citizens, between the ages of twenty and 
forty-five years, except as therein excepted, are declared to 



10 

constitute the national forces, and to be liable to perform 
military duty in the service of the United States, when 
called out by the President for that purpose. These forces 
were divided into two classes. Those who were drawn by 
lot, after having been regularly enrolled, unless exempted 
by law, were either to serve as soldiers, or to procure substi- 
tutes, or to pay three hundred dollars. The service is, there- 
fore, compulsory, or in the words of the Declaration of 
Rights to our first Constitution, the drafted man must yield 
his "personal service," or "an equivalent thereto," for Con- 
gress has decided it is necessary. I cannot, therefore, doubt 
that this Act of Congress, in the present situation of the 
country, is a clearly constitutional exercise of power by the 
Supreme Legislature of the Union. This is the view enter- 

AVasliiugton , , 

Chronicle, Sept. tained by two judges of the United States Courts, both men 
19,1863; 20 ^£ g^jj^gj^^ leamino; and talents, and livinsr in different dis- 

Legal Intelli- _ O ' & 

gencer, p. 300. tricts, — I mean Judge Betts, of New York, and Judge Cad- 
walader, of Pennsylvania. 

If there ever was an occasion to call every man into the 
service of his country, it is the present one, when we are 
engaged . in com.bating the most formidable, wicked, and 
causeless rebellion known in history, of which the object of 
its traitorous leaders is to destroy the Union, to erect a purely 
slave confederacy, and to make Pennsylvania a border State, 
exposed to the annual inroads of unprincipled enemies. I 
am, therefore, for using the whole population, if necessary, 
of the loyal States, to extinguish this treasonable rebellion. 
I have no idea of allowing Northern sympathizers to stay 
at home, whilst loyal men fight their battles and protect their 
property. I would oblige all such men to render their full 
share of military service, and if I had the power, I would 
place the New York rioters in the front ranks of the army. 

We have, however, been referred to the example of Eng- 
land, as showing that the framers of the Constitution con- 
templated the armies of the Union should only be raised by 
voluntary enlistment. This has been said without a suffi- 
cient examination of the acts of the English Parliament, all 
of which were perfectly familiar to our Revolutionary states- 
men. 



11 

In 1704, 1756, 1757, 1778, and 1779, acts were passetU A.me. ci.. 

. . 10' l!9 <!eo. - 

for recruiting of His Majesty's land forces and marines, di-ch.T; so Geo! 
recting a speedy and effectual levy of able-bodied men tOg'^J gg.^^.f""' 
serve as soldiers. The commissioners under these acts wereoeo. s.ch. lo. 
required to levy and raise all able-bodied idle and disorderly 
persons who cannot, upon examination, prove themselves to 
exercise and industriously follow some lawful trade or em- 
ployment, or to have some substance sufficient for their sup- 
port and maintenance, to serve His Majesty as soldiers. 
If, upon their delivery to the military officers, such men 
shall appear more proper for service by sea than by land, 
they may be delivered over to any commissioned officer of 
His Majesty's fleet, to serve as common sailors. None were 
to be impressed under sixteen or above the age of fifty, or 
who had a vote in the election of members of Parliament. 

If an able-bodied man had sufficient substance, however 
idle and disorderly he might be, he could not be impressed, 
and the evident object of these acts was to force the poor 
man to serve at all events, and never to call compulsorily 
upon the nobility and gentry and the middle classes of the 
kingdom. Lord Mahon gives a strong instance of this in Lord jiabon •; 
the case of a gentleman being by some mistake j^ressed for ^■255. itss. ' ' 
foot soldier, and confined in the Savoy, and as the habeas 
corpus act of Charles the Second applied only to criminal 
cases, could only be released from imprisonment upon an ap- 
plication to the Secretary of War. 

Impressment for the navy has always existed in England. 2 May's const. 
In speaking of these modes of raising men for the army and ^^^^ ^ 209. ' 
navy, a very able writer of the present day says, "But per- 
haps the greatest anomaly in our laws, — the most signal ex- 
ception to personal freedom, — is to be found in the custom of 
impressment for the land and sea service. There is nothing 
incompatible with freedom in a conscription or forced levy of 
men for the defence of the country. It may be submitted to 
in the freest republic like the payment of taxes. The service 
of every subject may be required in such form as the state 
determines. But impressment is the arbitrary and capricious 
seizure of individuals from among the general body of citi- 



12 

zens. It differs from conscription as a particular confiscation 

differs from a general tax." 

u Law Maga- In England, when the militia cannot be filled by volunteers, 

^"stat at L p ^^® ™®^ (^^® privates) are selected b j a compulsory ballot, 

90- and by an act of 30th June, 1852, the Queen was authorized 

to raise eighty thousand private militia men, which might be 

increased to one hundred and twenty thousand. 

In fact, conscription, or its equivalent, has been resorted 
to by every civilized nation. The English government have 
never had in any single portion of the world in active service 
a native army much exceeding sixty thousand, the number 
which invaded France in 1814, whilst the armies of the other 
allied powers amounted to a million of men. 

The present rebellion, according to Lord Coke, is a war. 
Co. Litt. 2496; " So wlien by invasion, insurrection, rebellion, or such like, 
•2 Wilson, 363; ^-^^ peaccablc course of iustice is disturbed and stopped, so 

I'ratt on Con- '- ... i i ^ 

tnibands.p.Ts. as tlic courts of justicc bc, as it were, shut up, et silent leges 

Prize cases Sup. • , ,i •, • ■ i j. i j.- r " l l- 

c u States 20 ^^^^'^ arma, then it is said to be time oi war ; and such, 
Legal Int. 84; also, is the opiniou of the Supreme Court of the United 
i^^s'co. T$^. ^ States, and of this Court. 
Chester. 10 Leg. The individuals makina; Avar against us are both traitors 

.Tournal, 217. , . , . . , i c ^ 

and enemies, and it is waged w^on a scale oi the greatest 
magnitude, calling into the service of the country an army 
of eight hundred thousand men. It is, therefore, the duty 
of the Government to use every means within the scope of 
their authority to recruit the armies of the Union, and to 
sustain the gallant soldiers and generals who, by their glo- 
rious efforts and sacrifices, are gradually but certainly re- 
storing the Union to the full extent of its ancient limits. 

I am, therefore, of opinion that the act in question is con- 
stitutional, and that on this ground the motion for a special 
injunction should be refused. Here I might stop, but as I 
have grave reasons for believing that this Court has no power 
in the premises, it is proper to state m'y views upon this 
point. 

The proposition submitted to this Court by the counsel of 
the plaintiffs is, that a State tribunal should prohibit an 
officer of the United States, acting in strict conformity to 
an Act of Congress, from performing the duties imposed upon 



13 

him by law. I cannot think we have any such power. If 
we have it, has not the Governor or the Legishiture the same 
power? and if so, to what must it inevitably lead? — a col- 
lision between the National Government and one or more of 
the branches of the State Government, of which the judi- 
ciary is certainly the weakest. We havchad serious lessons 
on this subject, which should teach us to be careful in as- 
serting that the State authorities are to be the judges of the 
constitutional powers of the General Government. 

In 1812 the Judges of the Supreme Court of Massachu- 8 Mass. ow. 
setts, all of whom in turn were Chief Justices, gave their 
opinion that Governor Strong, and not the President, was the 
judge of the exigencies in which the militia could be called 
into the service of the United States. This opinion was sol- Martin vs. Mutt, 
emnly overruled by the unanimous decision of the Supreme ^^^^ *oj'^^' '' 
Court of the United States upon this same question. 

A celebrated convention, in 1815, in relation to Mr. Mon- 7 Niies- Keg. 
roe's bill for a draft, used this language: "The power of^'^'^" 
compelling the militia and other citizens of the United States, 
by a forcible draft or conscription, to serve in the regular 
armies, as proposed in a late official letter of the Secretary 
of War, is not delegated to Congress by the Constitution, 
and the exercise of it would be not less dangerous to their 
liberties than hostile to the sovereignty of the States. The 
effort to deduce this power from the right of raising armies 
is a flagrant attempt to pervert the sense of the clause in 
the Constitution which confers that right, and is incom- 
patible with other provisions in that instrument. The armies 
of the United States have always been raised by contract, 
never by conscription, and nothing more can be wanting to 
a government possessing the power thus claimed to enable it 
to usurp the entire control of the militia, in derogation of 
the authority of the State, and to convert it by impress- 
ment into a standing army." They also denounced as un- 
constitutional the law authorizing the enlistment of minors 
and apprentices without the consent of parents and guardians. 
The remedy proposed by the Convention was contained in its 
first resolution: '■'•Resolved, That it be, and hereby is recom-ici.312. 



14 • 

mended to the Legislatures of tlie several States represented 
in this Convention, to adopt all such measures as may be 
necessary to protect the citizens from the operation and 
effects of all acts Avhich have been or may be passed by 
the Congress of the United States, which shall contain pro- 
visions subjecting the militia or other citizens to forcible 
drafts, conscriptions, or impressments, not authorized by the 
Constitution of the United States." 

We may presume that neither the executive nor legislative 
branches of our State Government would adopt so unpatriotic 
a course, originally marked out by a body of men who, hoAv- 
ever respectable in private life, were believed by the domi- 
nant party and the people of that day to entertain designs 
of a treasonable character. Their reward Avas a forced re- 
tirement from public life, and involuntary political oblivion. 

But this appeal is made to the State judiciary, who clearly 
have no more right to interfere with an officer of the United 
States, holding any citizen under the authority of the United 
States, under a law^ of the United States, upon an allegation 
of unconstitutionality, than the State Executive or the State 
.-, Leg-islature Avould have. This is clear. The Supreme Court 

Booth, 21 How- of the United States have indeed decided this question in 
^^''''^' direct terms, intended to prevent all interferences of State 

authorities Avith the execution of the laAvs of the United 
States by their own officers. It Avill be recollected that the 
present application is a substitute for the Avrit of habeas 
corpus, which has been suspended ; and that the plaintiffs in 
the cases before us allege that they have been drafted, and 
have received notice of the draft, and are placed on the foot- 
ing of enlisted soldiers, and liable to be punished as deserters 
should they fail to report for duty, which they have done. 
All these facts appear on the face of the plaintiffs' bills of 
complaint, and the Court is judicially apprised that they are 
in custody, under the authority of the United States. Chief 
Justice Taney says, " They then know that the prisoner is 
Avithin the dominion and jurisdiction of another government, 
and that neither the Avrit of habeas corpus nor any other 
process issued under State authority, can pass over the line 



15 

between the two sovereignties. ' He is then within the do- 
minion and exclusive jurisdiction of the United States." 
"No judicial process, whatever form it may assume, can have w. 524. 
any lawful authority outside of the limits of the jurisdiction of 
the court or judges by whom it is issued, and an attempt to 
enforce it beyond these boundaries is nothing less than laAV- 
less violence," which would be resisted by force. 

The doctrine contended for by the plaintiflFs' counsel, is sim- 
ply the Calhoun heresy of nullification exploded by General 
Jackson, applied, not by a convention or a State legislature, 
but by a State judiciary, who may, by preliminary injunctions, 
stop the raising of armies and the collection of taxes, duties, 
imposts, and excises, and thus paralyze the arm of Govern- 
ment when stretched out to repel a foreign foe, or to suppress 
a rebellion, backed by several hundred thousand men in the 
field. I cannot agree that this Court can nullify an Act of 
Congress by any prohibitory writ. 

I therefore think this Court has no power to entertain these Am. Law Reg. 

1 • • . vol. 2 n. s -508 

bills, and of course no authority to grant the injunctions 
prayed for, in which I find I am supported by the Supreme 
Court of Michigan. 

But I am also of opinion, that we have no power, sitting as 
a court of equity, to grant the relief prayed for. Our authority 
is alleged to proceed from the 5th clause of the 13th section Brightiy's Pur- 
of the Act of 16th June, 1836, which is in these words : The ''°"' J'- ""'■ 
Supreme Court (and now all the Courts of Common Pleas, 
and District Courts), shall have the power and jurisdiction of 
Courts of Chancery, so far as relates to "V. The prevention 
or restraint of the commission or continuance of acts con- 
trary to law and prejudicial to the interests of the community, 
or the rights of individuals." 

Now neither in this provision, nor in the report of the re- 
visers, nor in any of the decisions of the Court, do I find any 
warrant to grant injunctions to stop the proceedings of 
officers of the United States, under Acts of Congress regu- 
larly enacted. If such be our power, then the sooner the 
Legislature interposes its legitimate power to alter the law, 



16 . 

and to prevent the various courts of the State from exercising 
a jurisdiction with which they never intended to invest them, 
the better. 

I am therefore of opinion, that under the Act of Assembly 
we have no such jurisdiction as is here claimed. 



18 



other mode tliaa by accepting the voluntary service of individuals, ia 
believed to be repugnant to the uniform construction of all grants of 
power, and equally so to the first principles and leading objects of the 
federal compact. An unqualified gi'ant of power gives the means ne- 
cessary to carry it into efi"ect. This is a universal maxim which admits 
of no exception. Equally true is it that the conservation of the state 
is a duty paramount to all others. The commonwealth has a right to 
the service of all its citizens, or rather, the citizens composing the com- 
monwealth have a right collectively and individually to the service of 
each other, to repel any danger which may be menaced. The manner 
in which the service is to be apportioned among the citizens, and ren- 
dered by them, are objects of legislation. All that is to be dreaded in 
such case, is the abuse of power, and happily our Constitution has pro- 
vided ample security against that evil. 

" In support of this right in Congress, the militia service afi'ords a 
conclusive proof and striking example. The organization of the militia 
is an act of public authority, not a voluntary association. The service 
required must be performed by all, under penalties which delinquents 
pay. The generous and patriotic perform them cheerfully. In the 
alacrity with which the call of the Government has been obeyed, and 
the cheerfulness with which the service has been performed throughout 
the United States by the great body of the militia, there is abundant 
cause to rejoice in the strength of our republican institutions, and in the 
virtue of the people. 

" The plan proposed is not more compulsive than the militia service, 
while it is free from most of the objections to it. The militia service 
calls from home, for long terms, whole districts of country. None 
can elude the call. Few can avoid the service, and those who do are 
compelled to pay great sums for substitutes. This plan fixes on no one 
personally, and opens to all who choose it a chance of declining the ser- 
vice. It is a principal object of this plan to engage in the defence of 
the state the unmarried and youthful, who can best defend it and 
best be spared, and to secure to those who render this important ser- 
vice, an adequate compensation from the voluntary contribution of the 
more wealthy in every class. G-reat confidence is entertained that such 
contribution will be made in time to avoid a draft. Indeed it is be- 
lieved to be the necessary and inevitable tendency of this plan to pro- 
duce that efiiect. 

" The limited power which the United States have in organizing the 
militia may be urged as an argument against their right to raise regular 
troops in the mode proposed. If any argument could be drawn from 



APPENDIX. 



EXTRACT FROM MR. MONROE'S LETTER OF OCT. 17, 1814. 

" Nor does there appear to be any well-founded objection to the right 
in Congress to adopt this plan, or to its equality in its application to our 
fellow citizens individually. Congress have a right, by the Constitution, 
to raise regular armies, and no restraint is imposed in the exercise of 
it, except in the provisions which are intended to guard generally 
against the abuse of power, with none of which does this plan interfere. 
It is proposed, that it shall operate on all alike, that none shall be ex- 
empted from it except the chief magistrate of the United States, and 
the governors of the several States. 

" It would be absurd to suppose that Congress could not carry this 
power into eifect, otherwise than by accepting the voluntary service of 
individuals. It might happen that an army could not be raised in that 
mode, whence the power would have been granted in vain. The safety 
of the state might depend on such an army. Long-continued invasions, 
conducted by regular well-disciplined troops, can best be repelled by 
troops kept constantly in the field, and equally well disciplined. Cour- 
age in an army is in a great measure mechanical. A small body well 
trained, accustomed to action, gallantly led on, often breaks three or 
four times the number of more respectable and more brave, but raw 
and undisciplined troops. The sense of danger is diminished by fre- 
quent exposure to it without harm ; and confidence, even in the timid, 
is inspired by a knowledge that reliance may be placed on others, which 
can grow up only by service together. The grant to Congress to raise 
armies was made with a knowledge of all these circumstances, and with 
the intention that it should take effect. The framers of the Constitution, 
and the States who ratified it, knew the advantage which an enemy 
might have over us, by regular forces, and intended to place their country 
on an equal footing. 

" The idea that the United States cannot raise a regular army in any 

2 



19 



that circumstance, I should suppose that it would be in favor of an oppo- 
site conclusion. The power of the United States over the militia has 
been limited, and that for raising regular armies granted without limita- 
tion. There was, doubtless, some object in this arrangement. The fair 
inference seems to be, that it was made on great consideration ; that the 
limitation in the first instance was intentional, the consequence of the 
unqualified grant of the second. 

" But it is said that by drawing the men from the militia service into 
the regular army, and putting them under regular officers, you violate 
a principle of the Constitution, which provides that the militia shall be 
commanded by their own officers. If this was the fact the conclusion 
would follow. But it is not the fact. The men are not drawn from 
the militia, but from the population of the country : when they en- 
list voluntarily, it is not as militia men that they act, but as citizens. 
If they are drafted it must be in the same sense. In both instances 
they are enrolled in the militia corps, but that, as is presumed, cannot 
prevent the voluntary act in one instance, or the Compulsory in the 
other. The whole population of the United States within certain ages 
belong to these corps. If the United States could not form regular 
armies from them they could raise none. 

" In proposing a draft as one of the modes of raising men in case of 
actual necessity, in the present great emergency of the country, I have 
thought it my duty to examine such objections to it as occurred, parti- 
cularly those of a constitutional nature. It is from my sacred regard 
for the principles of our Constitution that I have ventured to trouble 
the committee with any remarks on this part of the subject." 

B. 

Mr. Biddle was in France, with General Armstrong, and the follow- 
ing is an extract from his speech in the Senate of Pennsylvania, on 
10th January, 1815. Mr. Biddle said: "I well know, sir, that a pro- 
ject of this kind has been assailed in Congress, where it has been branded 
as a French conscription, the very name of which was fatal to it. One 
word, sir, about conscription. It is thought because Bonaparte made 
use of it, it is improper for any country to resort to anything like 
it. But take it in its most odious form, it is not the project of Bonaparte. 
It was resorted to by the French Convention, in their contest for liberty, 
when all the nations of Europe were arrayed against them, and when 
they had alone the hearts of the people of this country in their favor. 
It was resorted to and found successful in repelling the foes of that re- 



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